STRIKING OUT AND SUMMARY JUDGMENT: ANOTHER CASE TO “CUT OUT AND KEEP”: ALS0 – THE EVIDENCE STOPS ONCE THE APPLICATION HAS BEEN HEARD

Some judgments extrapolate and summarise legal principles so succinctly that they can be regarded as “cut out and keep” guides to an area of law or practice. The judgment of Master Shuman in Capita Pension Trustees Ltd & Anor v Sedgwick Financial Services Ltd & Ors [2019] EWHC 314 (Ch) gives a succinct summary of the principles relating to striking out and summary judgment. The judgment also contains important observations on the need to make a formal application if a party wants to adduce further evidence once an application has been heard.

“I entirely agree with Mr Mold’s observations that, “the hearing process requires parties to submit evidence relevant to the hearing in advance, make their submissions at the hearing and then, once the evidence and submissions close, the court will deliver its decision. Adherence to this process is essential for reasons of procedural fairness and practical efficiency. If it is not followed, or departed from without good reason, it leads to unfairness and an unjustifiable use of the court’s and parties’ resources.”

THE CASE

The claimant brought an action in professional negligence against the defendant. The defendant, in turn, brought a Part 20 claim against the third party firm of solicitors. The third party sought to strike out part of the defendant’s additional claim. The striking out would have the effect of disposing of the claim against it. The third party also sought summary judgment in relation to the same paragraphs.

THE MASTER’S SUMMARY OF THE PRINCIPLES INVOLVED IN AN APPLICATION TO STRIKE OUT AND SUMMARY JUDGMENT

THE LAW

Strike Out

Pursuant to CPR 3.4(2),

“3.4(2) The court may strike out a statement of case if it appears to the court—

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

…

(c) that there has been a failure to comply with a rule, practice direction or court order.”

The notes to the White Book 2018, at 3.4.2 reiterate that a claim should not be struck out unless the court is certain that it is bound to fail. Paragraph 1.4 of Practice Direction 3A gives examples of cases where the court may conclude that particulars of claim disclose no reasonable grounds for bringing the claim: claims which set out no facts indicating what the claim is about; claims which are incoherent and make no sense; and claims which contain a coherent set of facts but those facts even if true, do not disclose any legally recognisable claim against the defendant.

Mr Mold submits that these examples confirm that the jurisdiction under r.3.4(2)(a) is only to be exercised in an extreme case. He says that approach accords with the emphasis in the authorities that the Court should only strike out a claim ‘in plain and obvious cases where the court can be certain that the claim is bound to fail’; Oysterware Ltd v Intentor Ltd [2018] EWHC 611 (Ch) at paragraph 40. I do not accept the gloss placed upon CPR 3.4(2)(a) by Mr Mold, that it may only be used in “an extreme case”. I go back to the rules and specifically the test for strike out set out in set out in CPR 3.4(2)(a) “that the statement of case discloses no reasonable ground for bringing the claim”: that is the test to be applied.

Mr Mold also submitted that a strike out application should not normally require examination of the evidence but instead it should be clear, on the face of the statement of case, that it discloses no reasonable grounds for bringing the claim.

Under CPR PD 16 para 7,

“7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.

7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.”

Where a statement of case is found to be defective the court should consider whether the defect may be cured by amendment and allow a party an opportunity to amend: Kim v Park[2011] EWHC 1781 (QB) Tugendhat J at paragraphs 40 to 41.

Mr Mold and Mr Khan referred me to McPhilemy v Times Newspapers Ltd[1999] 3 All ER 775. Lord Woolf MR at 792 to 793 set out the purpose of a statement of case, albeit this was in the context of a libel claim and the defendants applying to reamend particulars of justification to plead conspiracy.

Although I was not referred to Towler v Wills[2010] EWHC 1209 Teare J’s analysis of the purpose of pleadings is uncontroversial and helpful.

“18. The purpose of a pleading or statement of case is to inform the other party what the case is that is being brought against him. It is necessary that the other party understands the case which is being brought against him so that he may plead to it in response, disclose those of his documents which are relevant to that case and prepare witness statements which support his defence. If the case which is brought against him is vague or incoherent he will not, or may not, be able to do any of those things. Time and costs will, or may, be wasted if the defendant seeks to respond to a vague and incoherent case. It is also necessary for the Court to understand the case which is brought so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense. For these reasons it is necessary that a party’s pleaded case is a concise and clear statement of the facts on which he relies; …”

19. It is not fair and just that the Defendant cannot be sure of the case he has to meet. It may well be that, with appropriate legal advice, the Claimant could have pleaded a concise, clear and particularised case against the Defendant but that has not been done. If the Amended Particulars of Claim are not struck out there is a very real risk that unnecessary expense will be incurred by the Defendant in preparing to defend allegations which are not pursued, that he will be impeded in his defence of allegations which are pursued and that the Court will not be sure of the case which it must decide.”

Summary Judgment

Pursuant to CPR 24.2 a court may give summary judgment on the whole of a claim or on a particular issue if:

“(a) it considers that—

(i) the claimant has no real prospect of succeeding on the claim or issue; … and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.”

In the notes to Volume 1 of the White Book 2018 at 24.2.3 it is commented that,

“In order to defeat the application for summary judgment it is sufficient for the respondent to show some “prospect”, i.e. some chance of success. That prospect must be “real”, i.e. the court will disregard prospects which are false, fanciful or imaginary. The inclusion of the word “real” means that the respondent has to have a case which is better than merely arguable”. … The respondent is not required to show that their case will probably succeed at trial. A case may be held to have a “real prospect” of success even if it is improbable. However, in such a case the court is likely to make a conditional order…”

The hearing of a summary judgment application is not a summary trial. The court will therefore only consider the merits of the respondent’s case to the extent that it is necessary to determine whether it has sufficient merit to proceed to trial. As Lord Hope of Craighead said in Three Rivers DC v Bank of England (No 3)[2003] 2 AC 1 at paragraphs 94 -95,

“94. For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is — what is to be the scope of that inquiry?”

95. I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman , at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.”

Both parties referred me to Easyair Ltd v Opal Telecom Ltd[2009] EWHC 339 (Ch). The claimant as vendor brought claims for breach of contract and breach of fiduciary duty in relation to a series of contracts for the sale of subscriber contracts to a mobile telephone service for commercial multi-user GSM gateways and an agency agreement whereby the vendor would act as the purchaser’s agent. Lewison J, as he then was, granted reverse summary judgment on part of the claim, allowing the account and inquiry to go to trial.

At paragraph 15 he summarised the principles to be applied on a summary judgment application brought by a defendant,

“15. … The correct approach on applications by defendants is, in my judgment, as follows:

i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2 All ER 91 ;

ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8]

iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman

iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]

v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ;

vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63 ;

vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725.”

The evidential burden is on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for a trial. If credible evidence is adduced in support of the application then the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for a trial. The standard of proof is not high. As the notes to the White Book 2018 24.2.5 emphasise,

“the Court hearing a Pt 24 application should be wary of trying issues of fact on evidence where the facts are apparently credible and are to be set against the facts being advanced by the other side. Choosing between them is the function of the trial judge, not the judge on an interim application, unless there is some inherent improbability in what is being asserted or some extraneous evidence which would contradict it”.

The other limb of the summary judgment test must also not be overlooked, that there is “no other compelling reason [for] a trial”.

THE RESULT IN THIS CASE

The Master rejected the application to strike out and for summary judgment.

TRYING TO RE-ARGUE THE CASE IN CORRESPONDENCE

The judgment also contains some interesting passages as to what happened after the hearing.

Following the hearing I started to receive further correspondence relating to disclosure issues.This was precipitated by my clerk making enquiries about the parties’ availability for the purposes of listing a hearing to hand down judgment, deal with consequentials and conduct the outstanding costs and case management conference. It started with a letter from the claimants’ solicitors dated 23 October 2018, although of course they played no part in the third party’s application. In that letter the claimants’ solicitors emphasised that Ewan Horn did not state that a handover of papers had taken place, he suggested it was a possibility. They went on to state that they had asked Squire Patton Boggs (SPB) to carry out a search but they were unable to find any relevant documents. Although they then went on to state that, “It is our view that it is highly unlikely that we will find any documents and/or information were handed over to SPB by Denton Hall.” I do not see how that follows from the first proposition. They attach an email from Wendy Hunter at SPB who set out the search processes which they had recently undertaken in respect of certain “client codes”.

There then followed a raft of letters from the parties; the claimants’ solicitors dated 29 October 2018; the defendants’ solicitors dated 26 October 2018 and 31 October 2018; and the third party’s solicitors dated 26 October 2018. It is inappropriate and highly irregular to litigate an application that has been heard through subsequent correspondence. I therefore listed the application for further argument on a date when all parties could attend, 9 November 2018.

Mr Khan submitted that the evidence contained in the correspondence was admissible. Both counsel referred me to Vernon v Bosley No 2[1999] QB 18. In the context of an application to reopen a case in light of new disclosure the Court of Appeal explained that such a course would only be permissible with (i) the permission of the court and (ii) in special circumstances and not “unless the document is of real significance and there is otherwise a risk of injustice”. Mr Khan submitted that I am simply exercising a case management discretion and that it is materially different to a case heard at trial. Although of course if I determine the application in favour of the third party I am effectively striking out the additional claim. He says that the claimants’ solicitors have found nothing in their searches. Insofar as the defendants mount their opposition to the application on a ‘smoking gun’ theory, that there is a strong likelihood that further relevant documents will be disclosed, that is undermined by this recent correspondence.

Mr Khan with some fortitude pressed this point before me despite the claimants’ solicitors having sent an email at 4:30 PM on 8 November 2018 retracting their view in the letter to the court dated 23 October 2018. After some questioning by me Mr Khan finally accepted that this email may “factor against my application”.

I have not determined the application on the basis that there may be documents that emerge in the disclosure process. Indeed I have at some length analysed the statements of case by reference to the test for strike out and summary judgment. I have analysed the factual matrix and the specific documents that the parties have referred to. I have concluded that this is not an appropriate case for striking out, although I do require the defendants to amend their additional claim so that it forms one coherent pleading of the facts and matters relied upon in support of the allegation of the third party’s retainer and its scope. I have also concluded that this is not an appropriate case for summary judgment. I have not come to those conclusions on the basis that there may be some evidence that emerges on disclosure.

If the third party had wished to rely on further evidence and the thrust of Mr Khan’s submissions remained that no further documents will be disclosed I would have expected that to be set out in a witness statement from SPB who conducted that exercise and from the claimants’ solicitors as to the parameters of their request to SPB. Instead what I have before me is correspondence that was sent to the court by the claimants’ solicitors. I entirely agree with Mr Mold’s observations that, “the hearing process requires parties to submit evidence relevant to the hearing in advance, make their submissions at the hearing and then, once the evidence and submissions close, the court will deliver its decision. Adherence to this process is essential for reasons of procedural fairness and practical efficiency. If it is not followed, or departed from without good reason, it leads to unfairness and an unjustifiable use of the court’s and parties’ resources.”

I have considered the correspondence in the context of the parties’ further submissions. Upon analysis that correspondence leaves me in the same position as in September. Indeed there is an acceptance by the claimants’ solicitors in their email dated 8 November 2018 that there are gaps in the search that was carried out by SPB, that is no criticism of SPB.

Insofar as Mr Khan made an oral application to admit further evidence I dismiss that application for the reasons that I have set out above. Unless it is a matter of extreme urgency I would expect such applications to be made by application notice and supported by evidence. When I say evidence I am referring to a witness statement signed with a statement of truth not a raft of correspondence sent in piecemeal fashion to the court.